Native Water Protection Flows Through Self‐Determination: Understanding Tribal Water Quality Standards and “Treatment as a State”

Abstract

For Indigenous communities, protecting traditional lands and waters is of the utmost importance. In the U.S. context, scholars have documented an unfortunate neglect of water quality on tribal lands. Treatment as a State (TAS) provisions, adopted in the 1987 amendments to the Clean Water Act, and tribal Water Quality Standards (WQSs) programs are intended to address such problems. Importantly, tribal WQSs may be more stringent than neighboring state standards, and can be used to influence pollution levels coming from upstream, off‐reservation users. Tribes can also develop WQSs that support unique tribal values, including ceremonial and cultural uses of native waters. Yet scholarly debates question whether tribal environmental self‐determination strategies can fully succeed within dominant regulatory structures. Based on a synthesis of the published literature, this article examines tribal WQSs as a case of tribal environmental self‐determination. The author discusses how U.S. tribes pursue WQSs under TAS, program outcomes, and why so few tribes have established WQSs to date. Because most scholarship was found within the legal literature, the author focuses on the legal and political outcomes that arise from tribal WQSs, and analyzes specific opportunities and constraints for program participants. The author also considers how some tribes use WQSs as a “third space” strategy—simultaneously working inside and outside of dominant government structures to advance tribal sovereignty (Bruyneel ). Additional research is needed to understand the diversity of tribal environmental self‐determination strategies that occur through federal regulatory frameworks and under tribal law.

Breaching Barriers: The Fight for Indigenous Participation in Water Governance

“…Throughout the US, Indigenous perspectives on water may lead to governance strategies that share objectives with federal and state water laws and policies, including a desire to provide ample, clean water for a variety of human and non-human uses [60,61]. However, Indigenous peoples may be motivated by other priorities, including deep, identity-defining connections to specific rivers, coastlines, wetlands, and other waters.…”

“…State-recognized Tribes generally lack access to the panoply of legal, political, and policy tools available to their federally recognized kin [40,60]. Individual Tribal citizens can freely participate in decision-making about water in their territories through public comment processes or by petitioning elected officials, but these mechanisms for individual participation are not equivalent to recognizing Tribal nations as collective sovereigns.…”

Spatio-Temporality and Tribal Water Quality Governance in the United States

“…Diver argues that water quality governance represents a productive "third space of sovereignty" for Tribes because networks connect the gains made by Tribes to other entities. As such, tribal water quality governance is both a territorial governance strategy and an extra-territorial strategy [29].…”

“…In the U.S., one significant network associated with tribal water quality governance relates to the Clean Water Act's (CWA) Treatment in a manner similar to a State (TAS) provision [29][30][31][32][33][34][35][36]. TAS was first applied to the CWA through 1987 amendments, in which Congress acknowledged the capacity of tribal governments in water quality planning, monitoring, and implementation, such that federally-recognized Tribes may now apply for and receive TAS.…”

Disparities in Water Quality in Indian Country

“…Established under the 1986 Safe Drinking Water Act (SDWA) Amendments, tribes may develop their own water quality standards (Public Law 99‐339 1986). This “primacy” allows tribes to establish and enforce their own standards through an application process, but they must meet the minimum EPA health‐based criteria of established standards under the SDWA and follow treatment standards for groundwater and surface water (Diver ). The EPA's regional offices are responsible for monitoring, enforcement, and compliance for those tribes that do not have primacy.…”